Delhi District Court
Jasbir Kaur Makhni vs T.G. Buildwell Pvt. Ltd on 23 March, 2015
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
Civil Suit No. 137/14
Jasbir Kaur Makhni
..... Plaintiff
Vs.
T.G. Buildwell Pvt. Ltd.
..... Defendant
O R D E R
1. Vide this order I shall dispose of an application under section 8 of Arbitration & Conciliation Act, 1996 moved by the defendant.
2. It is stated in the application that as per clause 39 of the Apartment Buyer Agreement, it was agreed between the parties that in case any dispute or differences arises between the parties, same shall be settled through arbitration and the award of the Arbitrator shall be final and binding on the parties and hence this court has no jurisdiction to try and entertain the present suit. The defendant has prayed for dismissal of the suit and that matter may be referred to the Arbitrator as per the agreement between the parties. CS No. 137/14 Jasbir Kaur Makhni Vs. T.G. Buildwell Pvt. Ltd. Page 1 of 8
3. The plaintiff has filed reply to the application contending that alleged agreement relied upon by the defendant is not an arbitration agreement as defined under Section 7 of the Arbitration and Conciliation Act as same is not signed by either of the parties. It is denied that the terms and condition of the alleged Apartment Buyer Agreement are binding upon the parties. It is stated that Section 7 (3) of the 1996 Act makes it clear that there has to be a written arbitration agreement entered into between the parties, but in the present case there is neither a signed arbitration agreement nor an agreement signed by the parties containing an arbitration clause and hence the application is not maintainable. The plaintiff has prayed for dismissal of the application.
4. I have heard the Ld. Counsel for the parties and perused the record carefully.
5. The plaintiff has filed the present suit seeking recovery of Rs. 19,50,000/ against the defendant. The case of the plaintiff is that the defendant launched a proposed scheme of resorts and the plaintiff booked a 3 bedroom apartment admeasurng 1550 sq. ft. on 11th Floor in building tower in the defendants proposed upcoming resort for an amount of Rs. 19,50,000/ . The plaintiff paid the said amount of Rs. 19,50,000/ through various cheques on various dates. The plaintiff was assured that the possession of the flat will be handed CS No. 137/14 Jasbir Kaur Makhni Vs. T.G. Buildwell Pvt. Ltd. Page 2 of 8 over to her by October, 2010. But in November, 2008 when plaintiff went to the site to see the progress of the work, she shocked to see that there was no progress at the site. The plaintiff asked the defendant to refund the aforesaid amount as there was delay in progress in the work and despite assurances the defendant did not bother to speed up the progress of the work nor has refunded the amount. Hence, the present suit.
6. The defendant by way of present application contends that there is an arbitration clause in Apartment Buyer agreement in para no. 39 of the agreement which debars the plaintiff from filing the present suit before this court as the parties agreed to settle their disputes or differences, if arises between them, through arbitration.
7. Ld. Counsel for defendant has also argued that the terms and conditions contained in the Apartment Buyer Agreement are binding upon the parties even if the same is not signed by the parties. In support of his contention, the Ld. Counsel has relied on judgments reported in (i) M/s Progressive Constructions Ltd. Vs. Bharat Hydro Power Corporation Ltd. AIR 1996 Delhi 92, (ii) Jugal Kishore Rameshwardas Vs. Mrs. Goolbai Hormusji AIR 1955 SC 812,
(iii) Banarasi Das Vs. Cane Commissioner, UP & Anr. AIR 1963 SC 1417, (iv) Union of India Vs. Rallia Ram AIR 1963 SC 1685, CS No. 137/14 Jasbir Kaur Makhni Vs. T.G. Buildwell Pvt. Ltd. Page 3 of 8
(v) J.K. Jain & Ors. Vs. Delhi Development Authority & Ors. AIR 1996 SC 318, (vi) Chander Nath Ojha Vs. Suresh Jhalani & Ors. (1999) 8 SCC 628.
8. Perusal of the Apartment buyer agreement placed on record by the defendant reveals that it does not bear the signatures either of the plaintiff or of the defendant anywhere. Moreover, it is not ascertainable that the defendant has entered into the agreement with whom as no particulars of the second party has been furnished by the defendant in the said agreement. Further no date is mentioned when the said agreement was made and the necessary details of the flat, amount etc. are blank. Therefore, it cannot by any stretch of imagination said to be an agreement between the parties.
9. Ld. Counsel for defendant has relied upon the appointment letter dated 06.09.2008 and would argue that the defendant has sent the Apartment Buyer's Agreement to the plaintiff with a request to sign the same at the appropriate places and asked the plaintiff to return the same within 30 days from the date of allotment letter and therefore it amounts to acceptance of the agreement by the plaintiff. However, I fail to understand that how this unilateral letter dated 06.09.2008 sent by the defendant to the plaintiff would constitute an agreement or contract between the parties. The defendant has sent the appointment letter dated 06.09.2008 to the CS No. 137/14 Jasbir Kaur Makhni Vs. T.G. Buildwell Pvt. Ltd. Page 4 of 8 plaintiff asking her to sign the Apartment Buyer's Agreement within 30 days from the date of appointment letter and if she fails to execute and return the said Apartment Buyer Agreement within 30 days, the allotment shall be treated as cancelled. It is further averred in the said letter that terms and conditions in the Apartment Buyer's Agreement are final and shall prevail over all previous representations. It only shows that the said Apartment Buyer's Agreement was sent to the plaintiff, but it is not the case of the defendant that the plaintiff has returned the same after signing the same or has accepted the terms and conditions of the said agreement. Therefore, the appointment letter sent to the plaintiff cannot be said to be an agreement between the parties. In the absence of any agreement between the parties, question of having arbitration clause does not arise.
10. So far the authorities relied upon by the Ld. Counsel for the defendants are concerned, the same are distinguishable and not applicable in the facts and circumstances of the present case. In M/s Progressive Constructions Ltd. Vs. Bharat Hydro Power Corporation Ltd. (cited supra), there was concluded contract and only the formal contract was not signed, but the parties have agreed to arbitration in their tender documents which was binding upon the parties and in those circumstances it was held that even if the contract is not signed still the arbitration clause would be binding upon the CS No. 137/14 Jasbir Kaur Makhni Vs. T.G. Buildwell Pvt. Ltd. Page 5 of 8 parties. But in the present case there is no agreement at all between the parties.
11. Similarly, a perusal of the decision in Jugal Kishore Rameshwardas Vs. Mrs. Goolbai Hormusji (cited supra) shows that it was in the context of Arbitration Act 1940. It was held in the said judgment that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established. Similar view has been taken by the Hon'ble Apex Court in Banarasi Das Vs. Cane Commissioner, UP & Anr. AIR 1963 SC 1417. But in the present case, as discussed herein above, the Apartment Buyer's Agreement relied upon by the defendant is not signed by either of the parties. Rather it is only a standard format agreement of the defendant in blank bereft of any details and particulars of the second party with whom the alleged agreement is entered into.
12. Again the judgment titled as Union of India Vs. Rallia Ram AIR 1963 SC 1685 is distinguishable as in the said case there were correspondence between the parties and it could be deduced that parties have agreed for arbitration, but same is missing in the present case.
CS No. 137/14 Jasbir Kaur Makhni Vs. T.G. Buildwell Pvt. Ltd. Page 6 of 8
13. In J.K. Jain & Ors. Vs. Delhi Development Authority & Ors. AIR 1996 SC 318, the terms and conditions of tender form including term about reference of disputes to arbitration was agreed upon and hence it was held that there was an arbitration agreement between the parties. But the facts in the present case are different as discussed herein above.
14. Similarly, in Chander Nath Ojha Vs. Suresh Jhalani & Ors. (1999) 8 SCC 628 there was an arbitration agreement between the parties and therefore it was held that even if the same is not signed by the parties, same would be enforceable. But, in the present case there is no arbitration agreement between the parties.
15. The Hon'ble High Court of Delhi in M/s Harvinder Singh & Co. Vs. Chief Engineer (I & FC), Govt of NCT of Delhi & Anr. ARBP No. 104/2012 decided on 17.09.2012 has held that Section 7 (3) of the 1996 Act makes it clear that there has to be a written arbitration agreement entered into between the parties. There could also be a written agreement signed by the parties, or exchange of documents, containing an arbitration clause.
16. In the present case, there is neither a signed arbitration agreement nor an agreement signed by the parties containing an arbitration clause. There is nothing on record to show that the parties CS No. 137/14 Jasbir Kaur Makhni Vs. T.G. Buildwell Pvt. Ltd. Page 7 of 8 have ever agreed to resolve their disputes through arbitration.
17. In the light of aforesaid discussions, there is no merit in the application moved by the defendant under Section 8 of Arbitration & Conciliation Act and same is hereby dismissed with a cost of Rs. 2000/ payable to the plaintiff.
Announced in the open Court (Balwant Rai Bansal)
on 23rd March, 2015 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 137/14
Jasbir Kaur Makhni Vs. T.G. Buildwell Pvt. Ltd. Page 8 of 8